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Android ecosystem in peril due to GPL?

A claim is being made that the failure to comply with the GPL will block a company from ever using any version of the code again without gaining the agreement of each and every code contributor. Based on this, it is then suggested that the entire Android ecosystem is in peril.

The claim has come from Edward Naughton, an IP lawyer who made headlines earlier this year suggesting Android's Bionic headers were a copyright infringement, a claim later dismissed by Linus Torvalds as "Totally bogus". This time, Naughton has noted in his company blog that the GPLv2 section 4 says that if a company doesn't comply with the requirements of the licence, their rights under the licence "to copy, modify, sublicense or distribute" the code are automatically terminated. This, under Naughton's interpretation, means that once a company has lost those rights, they may never regain permission to distribute that code again without seeking the explicit permission of everyone who has contributed code to it.

To back this up, Naughton cites filings made by the Software Freedom Conservancy in a recent case against Best Buy, which say that a licensee cannot remedy a GPL violation by just releasing the source code later. The intellectual property lawyer then went on to apply this legal theory to Android, suggesting that Google's withholding of source code for some Android versions, such as Honeycomb, and the "woeful track record of GPL compliance in the ecosystem" would create many uncorrectable GPL violations; he then extrapolated that this would "put the entire Android ecosystem in potential legal jeopardy."

Naughton's position does appear to be debatable though. For example, the GPL licence that accompanies code can be considered a licence for that particular instance of the code; it does not automatically apply to other later or otherwise different versions of the code. This means that in the Best Buy case, for example, Best Buy could not, once legal proceedings had begun, start supplying the source code for devices that had already been sold and expect that to be sufficient to remedy the case. But, it would not forbid them from obtaining a new copy of the code and "rebooting" the licence terms. Also, the entire debate is theoretical until someone brings forward a case and asks a court to decide on what its interpretation of the GPL clause is.

In a July interview, Google's open source chief said that Google had released the source code for the GPLv2 licensed Linux kernel as required. "I want to point out that we are absolutely in compliance with the LGPL and GPL code, that parts are up there now", he explained, "it's just the Apache-licensed code that is delayed".